A more perfect "union" closer than ever

A huge, huge victory for human rights today in the United States with two decisions from the US Supreme Court.    And it means the States is one step closer to joining the civilized world regarding equal marriages.

First, in United States v. Windsor (12-307) the court voted 5 to 4 to strike down the Defense of Marriage Act which defined marriage as one man and one woman, and denied benefits to same sex couples.   In this case, a woman who lost her lesbian partner in death (the couple got married in Canada) was stuck with a huge estate tax bill of $363,000 + because she was not eligible for the spousal exemption.    Strictly speaking the issue was whether the IRS should give the survivor her money back.    The answer has been yes at the District Court and the Second Circuit and that holding was sustained today.  But it goes further.

Writing for the majority in a relatively brief 26 page decision, Justice Anthony Kennedy -- consistently the decider in most of the tough cases -- said that DOMA violates states' rights in determining who can get married (noting 12 states and Washington DC already recognize same marriage), noting that the definition of institutions can change over time and are not fixed in stone.    The law also violates the Fifth Amendment's protection of due process, and the Fourteenth Amendment's equal protection clause because it forces same sex couples to play by one set of rules at the state level but another at the federal level -- which is precisely the point the opponents of the law have been making all along.

The dissenters said the Court should never have heard the case at all, that they had no jurisdiction to do so (whatever) but even if they were proceeding on the notion they could, that they no authority to interfere with a legitimately passed piece of legislation.

Be that as it may, both sides were extremely critical of President Obama for not having his Justice Department handle the appeal to the Marble Temple instead leaving it to the Tea Party -- but also refusing to direct the IRS to just give the plaintiff (who became the defendant at the appeal level) her money back.    In short he was playing it both ways.    And on this, The Nine are absolutely right.    Barack's approach was in my opinion inexcusable and indefensible, indeed that may have also been a factor in today's ruling.   If you are "faithfully executing the laws" it means you fight for the law as is.     If you decide you can't support it then you tell your government to do what flows through from not having the law at all.

Second, the Court in Hollingsworth v. Perry (12-144) said that those who were challenging the striking down of Proposition 8 in California had no jurisdiction to file an appeal, once California decided not to appeal (Governors Ahnold and Moonbeam made sure of that).    This is because those who drafted the proposition could not demonstrate even plausibly that they were being "injured" by same sex marriage and there did not have an "actual case or controversy."

Effectively, this means Prop 8 is out the window and same sex marriage is legal in California again.   The vote was also 5 to 4 but a different majority led by Chief Justice John Roberts (Kennedy wrote the dissent).

But the ruling only applies to California.   And as Kennedy wrote, California law does allow a third party to act in the place of the State -- in this case, those who wrote the Proposition -- and therefore the appeal was entirely proper.   Not only that but the intiative process that exists in 27 States and the capital, referendums designed to bypass elected officials in the first place, could be compromised if laws passed under such processes were struck down by the courts at the trial, and that any move to defend those laws at the appeals level became impossible because the decisions were immune from challenge.  (I know, that's a bit wordy!)  By refusing to decide on this one, the majority actually challenges the idea it's The People that directs government and not the other way around.

The implication, to me, is that if this case wasn't DIGged (i.e. Denied for Improvidential Grant of appeal), the Court would have then had to deal with the big issue:   Do state bans on gay marriage violate the Fourteenth Amendment?    If it had had the guts to deal with the issue at hand now, the answer would almost certainly have been yes, the bans are unconstitutional and there gay marriage should be legal, everywhere.    A DIG is basically a cop-out, far as I'm concerned.

So true equality across America will have to wait.   Hopefully it won't be more than a few years.   In this case, the only way to get a final and definitive win is to have a two track appeal -- gay couples from one Red State and one Blue State where the practise is still outlawed, get appeals court decisions handed down close in time to each other (preferably contradictory ones), then appeal both at the same time to the High Court which would then have to consolidate the cases and decide once and for all.

The result, when it does happen, will be a no-brainer.   Equal marriage, at last.   And that will truly be a good thing.

Can boomerangs swing back out, after coming towards you?

It's a fair question, because there was another putsch in Australia today.    Three years after Kevin Rudd was forced out as Prime Minister by the ruling Labour Party in favour of Julia Gillard, today Gillard herself was shoved aside when it became clear her party has no chance of winning the spring elections in September (remember the seasons are reversed there) with her as leader.  The new Prime Minister:   Kevin Rudd!!!

Several MPs there have quit in disgust and some Cabinet members are moving to the backbenches.

Still, this has the kind of drama that is of a long ago era in Canada and only recently passed away (finally) in the UK -- that only elected members (in this case, MPs and Senators) voted for their leader, and such leaders got regularly tossed out for all sorts of reasons.   Can you imagine if the Cons here, fed up by the control freak nature of PMS, decided to dump him between conventions?    Get real.

I personally favour what has evolved in most countries, the one member one vote system -- that is, all card carrying members choose the leader, not just those elected to office.   A leader should be reflective of the rank and file, not just the narrow interests who are in the caucus.    If he or she is to become the head of government I'd think there has to be a connection to the grassroots.

Especially when voting is compulsory as it is Down Under.

But regardless, this story actually gave me a smile today -- that democracy in whatever form is actually alive somewhere, and much more relevant than it seems to be in Canada these days.   And that every so often ordinary MPs understand they actually have their own brains and are not "trained seals" like their leaders expect them to be.

Something that should be the case for any parliamentary democracy.

Raising the cap -- still not a good reason to approve Northern Gateway

The Con government has announced that Canadian energy companies who cause an environmental disaster will be liable for a much larger amount.   Currently, it's just $30 million for the east and west coasts and $40 million for the Arctic.    Now it will be $1 billion.

That's fine, but when one considers Exxon Valdez has cost Exxon / Mobil $7 billion to date (and this disaster happened in 1989), and Deepwater Horizon has forced British Petroleum to cough up at least $42.2 billion, a one billion dollar cap is a joke.

If Northern Gateway is to go ahead, then there has to be unlimited liability, and energy companies involved in the project should carry at least $10 billion of liability insurance.    I'm sure Lloyd's would love to have them as clients -- if for no other reason than the premiums would be so high that it might make the project not so cost effective.

Sure, the oil has to go somewhere.    But why not Canada and the United States first?    Why should a big chunk of our use come from OPEC, especially Venezuela?   Our goal should be total independence from foreign oil.

Until the worst case environmental impact is honestly discussed and companies are forced to commit to cleaning up their own messes, I'm still not convinced Northern Gateway is a good idea.

Do the Cons support free enterprise, or not?

As Canada gets ever closer to signing a free trade and labour agreement with the European Union, where free enterprise is alive and well despite a much more comprehensive social net than we have here, I'm piqued by something.

It seems incredible to me that the Conservative Party, the party that wants to reduce government regulations to the point where it's free reign for pollution, product safety standards and resource extraction has a different attitude when it comes to other parts of business.   Consider:

Exhibit A:    On March 19th of this year, Manulife Insurance dropped the rate on a five year term on a 15 to 25 year mortgage to 2.89% from the then prevailing 3.09%. (Note to American readers -- there are almost no mortgages in Canada that have the same rate for the entire amortization period, you have to reset the rate every six months to five years depending on what term you select, often based on where you think rates might move down the road.)

Within two hours, thanks to a call from Slim Jim Flaherty, the Finance Minister, the rate went back up to 3.09%.     He said he would have none of it.    Surprisingly the loudest criticism came from the ND's leader Tom Mulcair, a socialist, who said that Flaherty was interfering with the free enterprise system.

Tom was correct and still is.   Let's be honest, the posted rate is almost never the final rate.   Banks, trust companies, insurance -- they'll compete for your business.    Get a good mortgage broker, who gets a percentage from whomever "wins", and you'll find even your home bank bidding against itself.   In this situation, the final rate might have been 2.5% or even lower.   Is Jim suggesting he should have the right to interfere with this side of the business as well?

Moreover, as long as the rates offered are above the Bank of Canada rate (the rate banks charge each other) and the discount rate (what the government charges on direct loans to banks), is it really the government's business to dictate what we should pay to borrow money?   Especially when we have payday loan companies that charge well over 600% per year, way above the legal limit of 60%?   (Many states set the cap at 25%, and some provinces -- Ontario not being one of them -- has a limit of 17%).

Exhibit B:   On May 16, Telus offered to purchase troubled Mobilicity for a fair chunk of money -- $380 million -- to stop the troubled mobile carrier from going bankrupt.    Then on June 4, Christian Paradis blocked the sale saying that Telus violated a five year moratorium on the big telcos buying up smaller players.

That would be fine, except that Mobilicity is on tenterhooks, quite literally.   And if it were to go under, a lot of people would lose access to bandwidth.   They'd have to go with someone else, hope their phones could get unlocked -- or else face the cost of getting a new phone, a new contract, etc.  The five year rule was meant to give the new carriers time to build up a customer base.   The Big Three instead have gotten more innovative in pricing and made it more difficult for the new guys to have a chance.   Even two of the biggest cable companies, Shaw and Videotron, are going to sell their spectrum without even setting up cell divisions in the first place -- they see no point.

In this case, the company (Mobilicity) should have the right to determine its buyer, even if it's one of the Big Three.   It's no different than if I come up with a software that has such a huge market that I need a partner to distribute it.   Do I take on the partner, or sell it all together?   Or should I be told, no you can't -- you have to fend for yourself even if you're so overwhelmed you have to shut down?

Even more bizarre, the feds have delayed the next spectrum auction, for 5G, until next year.   Why?    Canadians should be able to get higher speeds and the sooner the better.   The new code of conduct should help this, as well as lower prices -- but the kind of attitude that stifles business and consumer choice is contrary to this.

Free enterprise?   Hardly.

Rathgeber leaves Cons -- others should follow

Brent Rathgeber resigned from the Conservative caucus last night, after his proposed private member's bill was basically emaciated by his fellow backbenchers.   His proposed bill, C-461, has one very simple purpose -- requiring that all public servants as well as CBC employees who earn more than $188,000 must have their salaries, taxable benefits and expense accounts published on a "sunshine list."    This number, which happens to be the same as that of a Deputy Minister -- that is, the top public servant in each department -- may be arbitrary, but if an ordinary MP's salary is $160,200 and he or she gets a housing allowance of $28,000 on top of that (if they are from outside Ottawa-Gatineau), it seems a reasonable enough threshold.

Rathgeber's cohorts voted to increase that way up to over $444,000 without any justification as to why it should be that amount.  Meaning that even the Chief Justice's pay packet wouldn't be on the list (not that her salary is a state secret anyway -- this year it's $379,900, even more than the PM who earns $320,400).

Couple of points.   First, having a fixed amount instead of allowing the threshold to rise with inflation would cause the list to eventually become so long that it becomes unwieldy as it has here in Ontario.   And it still leaves room for loopholes.   For instance, with Ontario's list, the floor is still at $100,000 (and has been since 1995!) but it does not include physicians whose billings are not disclosed but any professorships they may have are.   I am aware for instance of a child psychiatrist who a few years back was earning a huge amount of money for teaching at a medical school ($300,000 plus) on top of his remittances to public insurance (making that amount double, perhaps?).   This bill would allow for that kind of floating floor which is a good thing.

But second -- and this is what I think is important -- if this current Con government is all about "accountability", then why in heaven's name would one want to emaciate such an important bill?     We're not talking about what goes on at nuclear power plants or on board our state vessels at sea.    We as taxpayers have every right to demand value for money.   And that includes our public servants.    The vast majority of them do an outstanding job as the current régime continues to encroach on their independence.    Putting out those pay packets might even encourage people to apply to join Team Fed when they see how lucrative it can be if one applies himself or herself to it.

It takes a lot to get backbone in the current headwinds, and Rathgeber gets a huge thumbs up from me today.    If only others would follow.

There's a better chance a hair will grow in the palm of my hand.